Opinion
B161714.
7-24-2003
In re G.S. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JESUS S. et al., Defendants and Appellants.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant Jesus S. Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant Maria S. Lloyd W. Pellman, County Counsel, and Sterling Honea, Principal Deputy County Counsel, for Plaintiff and Respondent.
The parents of G.S. (born in 1985) and S.S. (born in 1993) appeal from an August 16, 2002 order declaring both children dependents of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b),
(d) and (j), and a September 25, 2002 dispositional order removing the children from the parents custody. The parents challenge the sufficiency of the evidence supporting the orders, claiming that G.S.s testimony lacked credibility, particularly because she allegedly recanted her claims of sexual molestation by Jesus S. (Father). We conclude that substantial evidence supports the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Maria S. (Mother) and Father began having problems with 16-year-old G.S. in December 2001, when she was in the tenth grade; G.S. was rebellious and disrespectful. In January 2002, G.S. came home from school with a bloody lip after getting into a fight with a girl. G.S. and Father had arguments about her absences from school. On one occasion, G.S. came home drunk and Mother took her to the hospital. In January 2002, Mother called G.S.s counselor at school and both she and G.S. began counseling.
According to G.S., on five occasions in April 2002, she sneaked out of her house at night and went to the park after her parents went to sleep. Unknown to her parents, G.S. also had a boyfriend and was using and selling drugs, including speed and cocaine. G.S. admitted that she used drugs from the seventh to the tenth grade because it was the only thing that made her forget all her problems at home.
On Friday, May 17, 2002, G.S. ran away from home after her parents refused to let her go to Magic Mountain because she had to work at the swap meet with her family. Mother found her at a friends house and her parents took her home. At home, Father took away G.S.s cell phone, told her she was not going anywhere, and Father kicked her in the leg and pushed her. According to Father, he did not kick her, but spanked her on the buttocks after he found out that she had been talking on her phone and had called Mother a "bitch." On May 18, G.S. ran away from home and Mother made a missing persons report with the sheriffs department. On May 20, someone broke a window, entered their apartment, and stole between $ 450 and $ 700 that Mother had hidden in her drawer. When in custody on May 24, G.S. told an emergency response worker from the Department of Children and Family Services (DCFS) that under her direction, two of her companions had broken into the home and stolen the money. G.S. later stated that she was the one who had broken into her home and had stolen the money, but a neighbor boy saw two teenage boys go into the house via a window and leave after about five minutes.
During the week she was away from home, G.S. stayed with her boyfriend in Pomona. Her parents did not know where she was until Father found her at another friends house on May 24 and called the police. Before the police arrived, Father told G.S. that he had put the father of her boyfriend in jail for taking her to Pomona without his permission, and G.S. responded that he (Father) was also going to jail. Father then said that it was not true that her boyfriends father was in jail, but that G.S. was in trouble. G.S. told Father that he was in more trouble.
After G.S. was taken into police custody as a runaway, she told the police that she did not want to go home because she feared that Father would hit her; she also said that Father had been fondling her and touching her vaginal area and had begun sexually molesting her when she was four years old. Father was arrested and charged with child cruelty, lewd acts with a child, continuous sexual abuse of a child, and sexual penetration. G.S. and S.S. were detained and placed in foster care. Father denied to the police that he physically or sexually abused G.S.
On May 24, 2001, G.S. told the police that Father had orally copulated her in January 2002 and she tried to push him off; in September 2001, Father had fondled her breasts, and about three weeks before she ran away, Father came up behind her in the kitchen and grabbed her buttocks, but she pulled away. G.S. told the police that Father would not hit her when she did not submit, but would find other reasons to hit her later, such as not doing the housework. Father would pull her hair or slap her face. Sometimes, he would pull her hair, make her fall down, and then kick her "everywhere." G.S. denied fabricating the abuse charges to avoid facing her parents after running away and stealing money from Mother. G.S. also told the police that she told Mother about the abuse when she was four years old, but Mother did not believe her, so she never disclosed the ongoing sexual abuse to Mother.
G.S. told police that in September or October 2001, she disclosed Fathers molestation to a group of her friends at school who wrote notes to each other in a spiral tablet journal. In June 2002, a police officer spoke with her friends, who confirmed that G.S. had disclosed the molestation to them, that they told her to report it to the police or a school official, but that she refused because she said she was afraid Father would hit her. One friend told police that she saw bruises on G.S.s arms, legs, back and shoulders on a weekly basis for over a year; G.S. told her that Father had caused the bruises because she did not let him touch her. G.S.s friend gave the journal to the police. In the journal, G.S. had written to her friends that "since I was 3 1/2 my dad started to molest me that went on till I was in 6th grade. . . . I never told my mom because I was afraid. But then when my dad stopped molesting me he started hitting me [and] beating the shit out of me. That has been going on till now. My mom told him once to stop hitting me and he slapped my mom so since that day my mom never tells him nothing."
A DCFS emergency response worker also interviewed G.S. when she was detained by the police; G.S. cried during the interview; she was too emotional to answer his questions about oral copulation by Father and would only say that Father "would do me."
At the jurisdictional hearing, S.S. denied that Father ever attempted to sexually molest her or touch her in inappropriate ways. She also denied that Mother ever hit her, but she did admit previously telling the police that Mother had slapped her, after repeated police questioning and after she had made many denials. According to S.S., the reason she told the police that Mother hit her was because the police interview was at 3:30 a.m., the police officer repeatedly asked her the same question, she had just awakened, and the officer was bothering her. Mother denied slapping S.S. but admitted spanking her.
According to the DCFS social worker, G.S. told DCFS that when she was four years old, she was lying in bed watching television with her six-year-old brother L.S. and Father; Father put his hand inside her underwear and touched her. L.S. told Mother, who dismissed the claims as fabrication.
Prior to the jurisdictional hearing, the children were placed together in the same foster home. G.S. had a physical examination, which did not show any signs of sexual abuse. S.S. recanted her statement that Mother slapped her; she wanted to go home to Mother, who was allowed monitored visitation twice a week. S.S. talked to Mother by telephone every day; Mother talked to G. S. by telephone several times a week. G.S. also told DCFS that Mother never hit S.S. G.S. told DCFS that she never saw Father physically abuse S.S. and did not suspect that Father ever sexually molested S.S. Mother denied Fathers sexual and physical abuse of G.S. and denied that she was informed of any sexual abuse; according to DCFS, Mother did not believe G.S.s allegations and Mother believed G.S. fabricated them as a form of retaliation.
The contested jurisdictional hearing was held over the course of several days in July and August 2002. G.S. testified extensively. She testified that when she was four years old, her brother told Mother that Father had touched her, and Mother asked her if it were true; she denied the touching because she was scared. Father hit her about three times a week beginning when she was in the fourth or fifth grade. Sometimes Mother was present when Father hit her. In the last year before she ran away, Father would molest her about three times a week; the last time Father touched her was three weeks before she ran away. Although G.S. testified that on several occasions in the last three years Father would grab her hand and put it inside his pants, she denied that Father ever forced her to do anything with her mouth and denied saying so to the police or social worker. G.S. never told anyone except her friends about the abuse because she believed Mother would blame her for disrupting the family and she did not want to go to a foster home. G.S. also testified that she believed that Mother did not want her returned home, but that she was a good mom.
L.S., then 19 years old, testified that he lived at home and never saw Father hit or kick G.S.; he believed that she had made up the stories about Father. L.S. did not recall any incident where Father touched G.S. under her clothes. Mother also denied that L.S. came to her and told her about Father fondling G.S.
Father denied all allegations of sexual abuse. Both Mother and Father denied that Father kicked or hit G.S., but Father admitted to spanking her. S.S. testified that she saw Father pull G.S.s hair several years ago, but did not see him knock her to the floor or kick her. According to S.S., when she and G.S. were in their foster home, they argued about G.S. using the foster mothers telephone, and G.S. told S.S. that she (G.S.) was going to lie in court so S.S. would not be able to go home. G.S. admitted making the foregoing statement but said that she was just kidding with S.S. According to G.S., S.S. would tell her that it was all her (G.S.s) fault that Father was in jail and that S.S. was not able to live with Mother.
On August 1, 2002, S.S. testified that a few days before, G.S. had told her that after a judge said Father was going to stay in jail, G.S. would tell the truth. G.S. admitted telling S.S. that she (G.S.) would deny the abuse so Father could come out of jail, but G.S. said that she made the statement "because my mom keeps crying to me all the time and everybody hates me already and I just want him to go back [home]" and "she just wants him to go home, that is all she cares about." G.S. believed that S.S. was not at risk of being molested by Father because she was always with Mother, who took S.S. everywhere she went.
G.S. testified that she did not feel close to her sister, brother, or Mother. After she and S.S. were placed in a foster home, both her brother and Mother were mad at her. As to Father, G.S. said, "I never liked him and I still dont like him," "because he is mean."
On August 16, 2002, the juvenile court sustained the allegations of the petition, except for the allegations of digital penetration. The juvenile court found G.S.s testimony to be credible and "reasonably consistent with the reports that were taken by the police officers." The court found not to be credible the testimony of both Mother and Father denying the physical abuse, and found that there were occasions when S.S. was inappropriately disciplined, as "slapping is never appropriate and the fathers acknowledgment of disciplining [G.S.] on a specific date when she ran away was inappropriate discipline." The court also found that "Fathers harassment, sexual harassment was offensive touching on a fairly regular basis." The court concluded that DCFS had established the allegations of the petition, with the exception of the allegations of digital penetration, by a preponderance of the evidence and sustained the petition pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), (d), and (j). (Unless otherwise designated, further statutory references are to the Welf. & Inst. Code.)
To support jurisdiction under section 300, subdivision (a), the court found in pertinent part that Father physically abused G.S. by hitting and kicking her and that Mother knew of such abuse and failed to take action to protect her. The court also found that Mother slapped S.S.s face and that Father knew of such abuse and failed to take action to protect her. Jurisdiction under section 300, subdivision (b), was based on the foregoing findings of physical abuse as well as the finding that Father sexually abused G.S. since about 1989, which included fondling her breasts and oral copulation, and that Mother knew of the abuse and failed to protect her. Jurisdiction under section 300, subdivision (d) was based on the finding of sexual abuse of G.S.; jurisdiction under section 300, subdivision (j) was based on findings of both physical and sexual abuse.
The dispositional hearing was held on September 25, 2002. A disposition report dated September 12, 2002, recommended that both children remain in foster care. According to the report, Mother had been visiting the children in a monitored setting twice a week, but because Mother was discussing case matters with the children, DCFS reduced visitation to once a week. Mother told G.S. to recant her statements because Father was in jail and Mother had no money or food. Although the children were doing well in their foster home, G.S. was rebellious and talked back to the foster mother. Beginning in July 2002, both girls participated in counseling and the therapist reported that both were sad about the need to be placed in foster care and were emotionally fragile. Mother had enrolled in parenting classes but had not yet enrolled in counseling and sexual abuse counseling for non-perpetrators.
A September 25, 2002 disposition report stated that on September 9, 2002, Father pleaded no contest to one felony count of violation of Penal Code section 273a, subdivision (a), willful causing of harm or injury to a child; pursuant to a plea agreement, the other counts were dismissed. Imposition of sentence was suspended and Father was placed on five years formal probation and, among other conditions, ordered to serve one year in the county jail, have no contact with G.S., and attend parenting classes. G.S., who had been having difficulty adjusting to a new school, was refusing to attend school and would return to the foster home after being dropped off at school.
At the dispositional hearing, counsel for G.S. argued that she should remain suitably placed and that it would not be safe to return her home to Mother because Mother continued to blame G.S. "almost exclusively . . . for the familys problems."
Mothers counsel argued that both children should be returned home, or at least that S.S. should be returned home. Counsel for S.S. joined in Mothers request that S.S. be returned home to Mother. Mothers counsel also informed the court that after Father was sentenced, G.S. told the deputy district attorney and the police officer that all of her statements about Father molesting her were false and at no time did Father ever sexually molest her. Counsel for DCFS argued that there was no evidence of G.S.s recantation before the court. DCFS maintained that the children were still at substantial risk if returned to Mother because Mother did not believe that anything had occurred to G.S. and was not supportive of her. The court stated that it had no doubt that G.S. recanted in the criminal court, "given the pressure that has been placed on the child."
The juvenile court found by clear and convincing evidence that the children were at substantial risk and detriment if returned to the custody of their parents and ordered suitable placement. Reunification services were ordered, including sexual abuse counseling. Because of Fathers "continuous denial," the court ordered that Father attend the "CLAUSAU" program for sexual abusers who deny the abuse. Mother was allowed monitored visitation; Father was allowed monitored visitation with S.S. but not with G.S. unless the criminal court lifted its stay-away order. The juvenile court stated that "just because [Fathers] plea does not involve the sexual abuse count doesnt mean that it did not occur," and "the stay away order [involving G.S.] is an indication of the [criminal] courts awareness of the facts in this case."
The juvenile court also stated that the dismissal of the sexual abuse counts and G.S.s recantations in the criminal case had "no bearing [on] what is going on here, nor the evidence that has been presented in this court and the courts findings." Directly addressing G.S., the court stated, "Theres a concern, however, that [G.S.,] your behavior is consistent with the abuse. . . . [P] What you foresaw as happening that kept you from your disclosing . . . and your behavior of not going to school and going back to the foster home is clearly indicating that you are depressed . . . ."
The courts position with respect to S.S. also had not changed notwithstanding the proceedings in the criminal court. The court stated that Mother may view Fathers conduct as "inappropriate physical touching," but it was abuse, and "we need to deal with these issues . . . ." The court found that Mother had not demonstrated to the court that she would provide sufficient protection for S.S., not necessarily from Father, "but other men or women who may place her at risk and so there is a lot both parents have to learn here . . . to assist your children in having a healthier family. [P] Its essentially Mothers behavior here and the behavior has caused the visits to be restricted, that indicates that Mother is not understanding the issues of child protection that would warrant a return of S.S. to her care."
Both Mother and Father appealed from the jurisdictional and dispositional orders, challenging the sufficiency of the evidence.
DISCUSSION
"It is the trial courts role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citation.] Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) "An appellate court may reject the testimony of a witness who was apparently believed by the trier of fact if that testimony is inherently improbable or impossible of belief." (People v. Jackson (1992) 10 Cal.App.4th 13, 21.) Testimony is not inherently improbable unless it appears that what has been related or described could not have occurred. (Postier v. Landau (1953) 121 Cal. App. 2d 98, 101, 262 P.2d 565.) "Contradictions and inconsistencies alone will not necessarily constitute inherent improbability." (People v. Swanson (1962) 204 Cal. App. 2d 169, 172, 22 Cal. Rptr. 178.)
A. Jurisdictional Order
Both appellants challenge the sufficiency of the evidence to support the jurisdictional order, claiming that the evidence raises serious questions about the credibility of G.S. and her motivations for her charges of abuse by Father. Appellants also claim that the only evidence of sexual and physical abuse came from G.S. Appellants essentially ask us to reweigh the evidence and reach a different result than the juvenile court, which we cannot do. The juvenile court was able to observe G.S. testify over the course of several days, in what was an emotional and grueling experience for the teenager. The court was also able to observe the demeanor of the other witnesses. The juvenile court found G.S. to be credible, and as nothing in her testimony was inherently improbable or impossible of belief, the trial court was entitled to believe it. Further, the testimony of G.S. was corroborated by the statements her friends made to the police and by G.S.s writing in the journal. G.S. had revealed the physical and sexual abuse to her friends in 2001, long before the events surrounding her running away from home and the burglary in May 2002.
While we acknowledge that there were some inconsistencies between the written journal note by G. S. to her friends and her statements in court, there were also many consistencies. Purported inconsistencies in the various statements by G.S. to the authorities were pointed out to the juvenile court by the parties counsel. The trial court reasonably could have concluded that the inconsistencies were not such as to render her story inherently improbable or impossible of belief. (See People v. Cox (1951) 104 Cal. App. 2d 218, 219, 231 P.2d 91 (Cox).) With respect to G.S.s alleged recantation, the trial court reasonably could have concluded that it was the result of family pressure, exerted by Mother, who was urging G.S. to recant her allegations because Mother had no source of money or food when Father was in jail. The trial court also reasonably could have concluded that S.S. recanted her statement to the police that Mother slapped her under similar family pressure.
As stated in Cox, supra, 104 Cal. App. 2d 218, a criminal case involving a court trial of a father convicted of molesting his 12-year-old daughter, we also can conclude here that "the record shows that the trial judge was fully conscious of [her] grave responsibility and that [she] weighed the evidence understandingly and with great care." (Id. at p. 219.) Appellants fail to establish that the jurisdictional findings were not supported by substantial evidence.
B. Dispositional Order
With respect to the dispositional order removing the children from parental custody, Father contends that the juvenile court failed to make appropriate findings under section 361, subdivision (c) and failed to state the facts supporting removal pursuant to section 361, subdivision (d). Although the trial court did not expressly label its statements as findings or cite to the specific subdivisions of section 361, no party claims on appeal that they were not aware or placed on notice that the applicable provisions here were subdivisions (c)(1) and (c)(4) of section 361. The record indicates that the juvenile court made findings applying the clear and convincing evidence standard and that those findings support removal under both provisions.
The juvenile court found sexual abuse of G.S. As it was also undisputed that G.S. did not want to return home, the dispositional order with respect to G.S. was proper under subdivision (c)(4) of section 361. The juvenile court thus made findings to support removal of G.S. under subdivision (c)(4) of section 361, and those findings are supported by substantial evidence, for the reasons set out above.
The juvenile court also made findings with respect to both G.S. and S.S. under the provisions of subdivision (c)(1) of section 361. The court found that Mother, at that time, lacked the understanding and appreciation of the risk of harm to her children and also lacked the education and resources to deal with the issues of abuse affecting her children. The court expressly found that the children would be "at substantial risk and detriment if returned to the care of the parents." These findings, based on subdivision (c)(1) of section 361, are also supported by substantial evidence.
Although Mother was participating in parenting classes, she had not yet begun any counseling dealing with issues of abuse. The juvenile court expressly found that Mother at that time did not understand the issues of abuse and child protection facing her children and family and was in need of education as to how to deal with those issues. This finding supports the conclusion that a return to Mothers home placed the children in substantial danger of physical and emotional harm. "A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute [( § 361, subd. (c)(1))] is on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 739-740.) We conclude that substantial evidence supports the juvenile courts dispositional order.
Appellants misplace reliance on Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 (Blanca P.), which involved an appeal from an 18-month review order under highly unusual procedural circumstances. In Blanca P., the juvenile court sustained a petition alleging excessive corporal punishment and then sustained a subsequent petition alleging sexual molestation by the father, even though the court did not read the subsequent petition and mistakenly believed that the molestation allegations had already been adjudicated. Although the order sustaining the subsequent petition was final and not timely appealed, the Court of Appeal reversed the 18-month review order and directed that the juvenile court hold another 18-month review hearing on the molestation allegations. The court concluded that "collateral estoppel effect should not be given, at a 12- or 18-month review, to a prior finding of child molestation made at a jurisdictional hearing when the accused parents continue to deny that any molestation ever occurred and there is new evidence supporting their denial. . . . In cases where child molestation is alleged and denied, and there is new evidence supporting the denial, to say that a parent is collaterally estopped from contesting the molestation itself at a 12- or 18-month review hearing is to make the `antecedent jurisdictional finding virtually dispositive in terminating parental rights - and dispositive based on a prior finding made under a preponderance standard." (Id. at pp. 1757-1758, fn. omitted.)
In the instant case, the juvenile court did not apply or rely upon collateral estoppel principles at the time of the dispositional hearing. The juvenile court here considered and weighed the new evidence presented in the dispositional reports and made new findings under the clear and convincing evidence standard. Blanca P., supra, 45 Cal.App.4th 1738, is not applicable here.
DISPOSITION
The orders are affirmed.
SPENCER, P. J., ORTEGA, J., we concur.
Section 361, subdivision (d) provides in pertinent part that "the court shall state the facts on which the decision to remove the minor is based."